Version Date: June 16, 2023

This Partner Program Agreement (“PPA”) forms part of a binding contract between Twingate Inc. (“Twingate”) and Partner and governs Partner’s participation in the Twingate Partner Program.

Partner may enter into this Agreement in a variety of ways, including by executing or otherwise accepting a Membership Form.

1. DEFINITIONS

“Administrative MSP” means a managed service provider that has been authorized by an End Customer to administer or manage a Product that the End Customer has purchased directly from Twingate or an authorized third party reseller.

“Agreement” means this PPA and any associated Membership Form.

“API” means application programming interface.

“Applicable Data Protection Laws” means all worldwide data protection and privacy laws and regulations applicable to the processing of any personal information or data.

“Covered Product” means a Product that is identified as such on a Membership Form, or that the parties have otherwise agreed in writing is a Covered Product.

“Customer Agreement” means the Customer Agreement located at https://www.twingate.com/terms.

“DPA” means the Data Processing Addendum available at https://www.twingate.com/legal.

“End Customer” means: (a) if Partner is acting as an MSP, a customer of the Partner for which the Partner is managing a Product; or (b) if Partner is acting as a Reseller, a customer of the Reseller that has acquired a Covered Product through an agreement between that customer and the Reseller (“Resale Agreement”) in connection and in accordance with this Agreement.

“End Customer Agreement” means an agreement between Twingate and an End Customer that governs the use of a Product by that End Customer.

“End Customer Personal Information” means any Personal Information of or from an End Customer that Partner processes for or on behalf of that End Customer in connection with a Product.

“Membership Form” means a Twingate Partner Program Membership Form or similar document (which may be presented online) that Partner enters into with Twingate that is made subject to the terms of this PPA.

“MSP” means a Partner that is designated by Twingate as an authorized managed service provider.

“MSP Portal” means a website or other user interface or online tool through which an MSP can access and manage its Subtenants. The MSP Portal is a Product.

“Order” means a Reseller PO or Order Form under which one or more Products are purchased by Partner.

“Order Form” means any Subtenant account signup or online order process; or order form, statement of work (“SOW”), or similar document, that an MSP enters into with Twingate for the purchase of Products from Twingate in connection with this Agreement.

“Partner” means the entity identified as such on the Membership Form.

“Partner Program” or “Program” means the programs that Twingate makes available to qualified and Twingate-approved entities relating to the use, management, integration, resale, and distribution of the Products.

“Personal Information” means “personal information” (as that term, or a substantively equivalent term such as personally identifiable information or personal data, is defined under Applicable Data Protection Laws).

“Price List” means the Product pricing appearing on the Membership Form representing the pricing under which Twingate will sell Covered Products to Partner, subject to the terms of this Agreement.

“Product” means a Twingate product, which may be any of its software as a service products and any accompanying software and APIs.

“Resale Agreement” is defined under the definition of End Customer.

“Reseller” means a Partner that is designated by Twingate as an authorized reseller of the Covered Products.

“Reseller Customer” means an End Customer of a Reseller.

“Reseller PO” is defined under Section 5.5 (Reseller Orders)

“Seat” means a single user account for a single end user that is authorized to use a Product. In the context of this definition, an end user may be a human user or a non-human service.

“Subtenant” means a subscription to an instance of a Product that is owned and managed by an MSP (whether for itself or an End Customer), and is accessible through the MSP’s MSP Portal.

“Territory” means the territory or territories specified on the cover page of this Agreement.

“Trademark” means a trademark, service mark, logo, or other mark or trade dress.

2. PARTNER PROGRAM

2.1. Agreement Structure. This PPA covers all Program partner types. Provisions relating to specific partner types only apply to Partner to the extent that Partner has been approved by Twingate, in its sole discretion, to participate in the Program as that partner type (e.g. as may be designated on a Membership Form approved by Twingate).

2.2. Partner Program Participation. Becoming a Program partner requires the submission of a partner application form to Twingate. All applications are subject to Twingate’s approval, which it may provide in its sole discretion. Participation in the Partner program is subject to Partner’s compliance with this Agreement and Partner continuing to meet any applicable qualification criteria.

2.3. Agreement Updates. Twingate may update this Agreement from time to time in its sole discretion. Twingate will post any updated PPA on the Twingate website and will provide prior written notice to Partner of an update if it contains any material changes that are applicable to Partner. Any updates will only apply prospectively and the updated version of the Agreement will supersede and replace the prior version of the Agreement as of the effective date of the update. Partner’s continued participation in the Program following the effective date of any Agreement update constitutes Partner’s acceptance of such updates.

2.4. Non-exclusive Appointment. Subject to Twingate’s approval of Partner into the Program, Twingate appoints Partner and Partner accepts such appointment as a Program partner. Partner’s appointment by Twingate as a Program partner will be, in all cases, on a non-exclusive basis and subject to compliance with this Agreement. The rights and licenses granted to Partner under this Agreement are personal to Partner and Partner may not transfer or sublicense any appointment made under this Agreement.

3. GENERAL PARTNER REQUIREMENTS

3.1. Point of Contact. Each party will designate a point of contact for coordinating the relationship between Twingate and Partner.

3.2. Qualifications & Training. Partner will maintain a good working knowledge of the Covered Products, including how they are used, deployed, and maintained. Twingate may make training programs available to Partner from time to time, and Partner will use commercially reasonable efforts to have its relevant personnel attend them.

3.3. Not For Resale Products. If Twingate provides Partner with a subscription to, or an account for, a Product on a “not for resale” (NFR) basis, Twingate grants Partner the right to use such Product in a non-production environment for: (a) internal training and testing; and (b) demonstrating and marketing the Product to potential End Customers. Partner agrees that its use of such Product will also be subject to the Customer Agreement or other end customer agreement accompanying such Product, or as otherwise provided by Twingate.

4. MARKETING

4.1. Publicity. Subject to this Section 4, each party has the right to reference the fact that Partner is in a collaborative relationship with Twingate on that party’s website and marketing collateral with respect to any partner type that Partner is approved as. Except as permitted by the foregoing sentence, Partner will not make any public statement or issue any press release with respect to such relationship without the prior written consent of Twingate.

4.2. Trademark License. Each party (the “Trademark Licensor”) grants to the other party (the “Trademark Licensee”) a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Trademark Licensor’s Trademarks solely in connection with the activities authorized by this Agreement, provided that such Trademarks are used by the Trademark Licensee in accordance with any trademark or brand use guidelines that the Trademark Licensor may provide to the Trademark Licensee from time to time. Partner will not remove or alter any of Twingate’s Trademarks that appear on or within any Products, nor apply any of Twingate’s Trademarks on non-Twingate products. Upon notice from a Trademark Licensor of its objection to any improper or otherwise objectionable use of the Trademark Licensor’s Trademarks by the Trademark Licensee, the Trademark Licensee will correct or cease such use as soon as reasonably practicable.

4.3. Trademark Ownership. Each Trademark Licensor retains ownership of all right, title, and interest in and to its Trademarks. Any goodwill arising from the use by the Trademark Licensee of Trademark Licensor’s Trademarks will inure to the Trademark Licensor’s benefit. Partner will not register, seek to register, or contest the validity of, any Trademarks or domain names owned by Twingate. Twingate does not authorize Partner’s use of any Twingate Trademark to promote or use for search engine ranking or ad word purchase or as part of a trade name, business name or domain name in any manner that could be detrimental to the interests of Twingate. If Partner registers or otherwise obtains rights to marks (as trademarks, service marks, domain names, company names, or otherwise) in violation of this Agreement, Partner will, at its own expense, transfer and assign such rights to Twingate, and execute all documents reasonably requested by Twingate to facilitate such transfer or assignment.

4.4. Review of Marketing Materials. Partner will provide Twingate with samples of any materials created by or on behalf of Partner that contain Twingate Trademarks prior to publication or distribution to third parties for Twingate’s approval (such approval not to be unreasonably withheld). Immaterial changes to previously approved materials will not require approval by Twingate.

4.5. End Customer Identification. Partner allows Twingate to identify Partner’s End Customers as users or customers of Twingate by their name or logo on the Twingate website and other marketing materials.

5. RESELLERS

5.1. Applicability. The provisions in this Section 5 only apply to Partners that have been approved by Twingate as Resellers.

5.2. Resellers. Partners approved by Twingate as Resellers may purchase Covered Products from Twingate, and market and resell Covered Products to prospective End Customers in the Territory. For the avoidance of doubt, a Reseller Customer may be another Program partner who is not reselling Products to End Customers (such as an MSP). Partner certifies that Covered Products purchased by it under this Section 5 (Resellers) are purchased for resale to Reseller Customers. Resellers will not solicit orders for Products from third parties outside of the Territory without Twingate’s prior written consent (and Twingate will have the right to determine whether any third party is located within or outside of the Territory).

5.3. Covered Products. Resellers do not have the right to resell Products that are not Covered Products. Twingate may, in its sole discretion, choose not to make a Product eligible for resale.

5.4. Reseller Marketing Activities. Partner agrees to:

(a) promote, market, and resell the Covered Products within the Territory in accordance with this Agreement;

(b) conduct its business in a manner that will reflect favorably on Twingate and the Products;

(c) not engage in any deceptive, misleading, illegal or unethical business practice; and

(d) market and advertise Covered Products consistent with any marketing materials made available by Twingate. Resellers will include in all marketing and advertising materials any applicable copyright and trademark notices as they appear on or in the Products, or as otherwise reasonably directed by Twingate.

5.5. Reseller Orders. For each resale of a Covered Product that Partner wishes to make to a prospective Reseller Customer, Partner will submit to Twingate a purchase order signed by Reseller (a “Reseller PO”) that specifies all of the following:

(a) the full legal name and address of the Reseller Customer;

(b) the Covered Product and, if applicable, the number of Seats for such product being purchased by the Reseller Customer;

(c) the desired start date of the Reseller Customer’s subscription to the Covered Product, if applicable;

(d) any other details required by Twingate to provision the Reseller Customer with access to the applicable Covered Product; and

(e) if a Reseller PO is submitted to add additional Seats to, or renew, an existing Reseller Customer subscription, the details and dates of that existing subscription.

Each Reseller PO will be subject to approval by Twingate at its sole discretion. Each approved Reseller PO will be subject to the terms of this Agreement, provided that the Reseller PO will prevail to the extent of any conflict between it and this Agreement. Upon acceptance of a Reseller PO, Partner will introduce Twingate to the relevant Reseller Customer and assist the Reseller Customer and Twingate to provision the Reseller Customer with access to the ordered Covered Products by the target start date identified in the Reseller PO. Once accepted by Twingate, a Reseller PO is non-cancellable by Partner and all payments are non-refundable.

5.6. Reseller Customer Terms. Access to Covered Products will be provisioned by Twingate to each Reseller Customer directly. Each Reseller Customer will be required to enter into an End Customer Agreement directly with Twingate as a condition of being able to access and use the Covered Products. Partner will resell the Covered Products to Reseller Customers subject to the End Customer Agreement and ensure that the terms of each Resale Agreement between Partner and each Reseller Customer:

(a) are no less protective of Twingate’s rights than under the End Customer Agreement;

(b) do not conflict the End Customer Agreement (and, in the event of such a conflict, the End Customer Agreement will prevail); and

(c) inform the Reseller Customer that use of Covered Products resold by Partner is subject to the Reseller Customer’s acceptance of the End Customer Agreement, and provide a link to such End Customer Agreement (which is made available online by Twingate at https://www.twingate.com/terms or any alternative URL provided by Twingate).

Twingate may suspend or terminate any subscription to a Covered Product by a Reseller Customer that does not agree to the End Customer Agreement.

5.7. Custom Reseller Customer Terms. Only Twingate can agree to changes to the End Customer Agreement, which can only be binding if agreed in a document signed by an authorized signatory of Twingate. In certain cases, Partner and Twingate may agree to additional terms in a Reseller PO that apply to specific Reseller Customers. In such a case, Partner will provide to that Reseller Customer, and procure that Reseller Customer’s agreement to, any such additional terms.

5.8. End of Subscription. Partner will immediately notify Twingate if a Reseller Customer’s subscription to a Covered Product, or a Resale Agreement, terminates to enable Twingate to deprovision, suspend, or terminate the relevant Reseller Customer’s access to the applicable Covered Product.

5.9. Reseller Customer Compliance. Partner will notify Twingate of any breach by a Reseller Customer of the End Customer Agreement or Resale Agreement promptly upon becoming aware of such a breach.

5.10. Right to Terminate. Partner agrees that Twingate may terminate an End Customer Agreement and Partner’s right to continue reselling Covered Products to a Reseller Customer if: (a) the Reseller Customer fails to pay Partner in accordance with the applicable Resale Agreement; or (b) an event occurs (such as the Reseller Customer materially breaching the applicable End Customer Agreement) that gives Twingate the right to terminate the End Customer Agreement. If Twingate does not desire to renew a subscription for a Covered Product, Twingate may terminate that subscription at the end of its subscription term, provided that Twingate will give Partner at least 45 days’ written notice of such desire before the relevant renewal date. Twingate will not be liable to provide any refunds to Partner in connection with any termination of a subscription or End Customer Agreement pursuant to this Section.

5.11. Assignment of Resale Agreements. With Twingate’s written consent, Partner may assign Resale Agreements from Partner to Twingate.

5.12. Reseller Customer Details. Partner represents and warrants that, to the best of Partner’s knowledge, the name and contact details of any Reseller Customer provided by Partner under a Reseller PO are accurate and complete to the best of Partner’s knowledge. Partner will promptly notify Twingate of any updates to such details.

5.13. Deal Registration Requirement. To qualify for Reseller discounted pricing in connection with a resale to an End Customer, a Reseller must first complete an online deal registration form (“Deal Registration Form”) with respect to that End Customer and Twingate must have approved that registration. Deal registration approval criteria and the criteria for the continued validity of an approved registered deal will be as described on the Deal Registration Form. The location of the Deal Registration Form can be obtained by contacting a Twingate Partner Program representative.

6. MSPs

6.1. Applicability. The provisions in this Section 6 only apply to Partners that have been approved by Twingate as MSPs.

6.2. MSP Portal. Twingate will provide Partner with access to the MSP Portal. Partner agrees that its use of the MSP Portal is subject to the Customer Agreement (under which the MSP Portal is a “Service” as defined by the Customer Agreement).

6.3. Administrative MSPs. Where an MSP is acting as an Administrative MSP for an End Customer:

(a) that relationship is not governed by this Agreement;

(b) Administrative MSPs are not MSPs for the purposes of this Agreement; and

(c) the Administrative MSP has no rights to access or use the End Customer’s instance of the applicable Product (via a web interface, API, or otherwise) other than as may be specifically authorized by the End Customer.

6.4. Purchasing a Subtenant. Partner may purchase a Subtenant by entering into an Order Form with Twingate. Partner agrees that such purchase and the use of the Subtenant will be subject to the terms of the applicable Order Form, this Agreement, and the Customer Agreement (excluding terms relating to pricing and payment that are covered in this Agreement). To the extent of any conflict or inconsistency between the foregoing 3 documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Customer Agreement. Purchased Subtenants will be accessible through Partner’s MSP Portal.

6.5. Subtenant Types. Partner may purchase Subtenants for the following purposes:

(a) for use on behalf of Partner’s End Customer for such End Customer’s own internal business purposes (“Managed Subtenant”); or

(b) for its own internal business purposes (“Internal Use Subtenant”).

6.6. End Customer Information. For each Managed Subtenant, Partner will provide to Twingate in writing the following details of the End Customer associated with such Managed Subtenant: End Customer name, address, and any other information reasonably requested by Twingate. Partner will keep such information current and accurate and will notify Twingate in writing of any changes to such information.

6.7. Relationship with End Customers. Partner acknowledges and agrees that, as between it and Twingate, Partner is solely responsible for all obligations to Partner’s End Customers, including any warranties, representations, guarantees or covenants made to such End Customers, including in relation to the Products. Partner will ensure that the terms of any agreement between Partner and End Customer in connection with a Managed Subtenant (“MSP Customer Agreement”) are no less protective of Twingate’s rights under Twingate’s agreements with Partner. Twingate’s only obligations are to Partner as set forth under this Agreement.

6.8. Partner Responsibility for Subtenants. Partner is responsible and liable for all actions and omissions occurring under Partner’s Subtenants (including all Seats in those Subtenants). If Partner provides a third party (such as an End Customer) with access to a Subtenant, then as between Partner and Twingate:

(a) Partner remains responsible for compliance with this Agreement, including with respect to obligations relating to the use of the Subtenant; and

(b) Partner will be solely responsible and liable for ensuring that such third party complies with the terms under which such Subtenant has been provided by Twingate to Partner.

6.9. End Customer Support. As an MSP, Partner will be solely responsible for all support of its End Customers and their end users. Twingate will only be responsible for providing support directly to Partner. If an End Customer requests support from Twingate, Partner authorizes Twingate to, at Twingate’s sole discretion, either refer such request to Partner or attempt to address the request directly.

7. PRICING AND PAYMENT TERMS

7.1. Subscriptions. Unless otherwise agreed, subscriptions purchased by Partner under this Agreement will automatically renew for periods equal to the initial subscription term of that subscription until Partner cancels that subscription through the relevant online billing page, or until either party provides written notice of non-renewal to the other party at least 30 days prior to a renewal date.

7.2. Payments. Partner will pay to Twingate all amounts specified in an Order when due. Except as otherwise specified in this Agreement or prohibited by applicable law, payment obligations are non-cancelable and payments are not refundable (including for any unused portion of a subscription term). All monetary amounts specified in this Agreement are denominated in United States dollars unless otherwise specified.

7.3. Payment Terms. Unless otherwise agreed in an Order:

(a) all monetary amounts on an Order are denominated in United States dollars;

(b) all amounts will be paid by Partner in United States dollars;

(c) invoices are due within 30 days of the invoice date; and

(d) fees in an Order will be invoiced in full and in advance by Twingate upon Twingate’s acceptance of the Order.

7.4. Pricing. Unless otherwise agreed in writing by the parties, Partner will pay Twingate for all Covered Products at the prices specified in the Price List (typically Twingate’s list price minus any applicable discount). Twingate may change its pricing (including list prices and discounts) at any time upon at least 30 days’ prior written notice to Partner.

7.5. Upsales. Unless otherwise agreed in writing by the parties, additional Seats ordered by Partner under this Agreement will have an initial subscription term that ends at the same time as the existing Seats for the Product subscription to which the additional Seats are being added, and pricing for those additional Seats will be prorated accordingly. Partner may not reduce the number of Seats purchased during the subscription term of a Product.

7.6. Overages. Twingate may review actual usage of Products from time to time (e.g. the number of Seats being used by an MSP or Reseller Customer). Partner agrees to pay for any usage beyond the amounts previously purchased by Partner (“Overage”), and Twingate may bill Partner for such Overages. Unless otherwise agreed in writing, Overages, where applicable, will be billed at the per unit pricing in effect at that time, and prorated for the portion of the applicable subscription term remaining at such time.

7.7. Overdue Payments. All payments that are not paid when due may bear interest at the lesser of 1.5% per month and the maximum lawful interest rate until payment is received by Twingate. Twingate may specify new payment terms if Partner fails to pay any amount when due, or if Twingate determines it is prudent to do so in light of Partner’s credit profile or any changes to such profile. If Partner fails to pay invoices when due, Twingate may suspend performance under this Agreement and any corresponding End Customer Agreement at any time.

7.8. Payment Method. Payments by Partner are non-refundable and will be remitted to Twingate by the method designated by Twingate or, if no specific method is designated, by credit card or debit card (“Payment Card”), wire transfer, or bank transfer. If Partner provides Twingate with Payment Card details for the payment of amounts due under this Agreement, Partner: (a) represents that it is authorized to use such Payment Card; (b) authorizes Twingate to charge such Payment Card on a periodic basis for such amounts, including upon renewals; (c) agrees to keep its Payment Card details valid and current; and (d) agrees to pay any processing fees that are charged by third-party payment processors or Payment Card issuers. If Partner's Payment Card is declined when Twingate attempts to charge it, Twingate may try to charge it again at a later time. If Twingate does not receive payment when due, Twingate may suspend performance under this Agreement and any corresponding End Customer Agreement at any time.

7.9. Taxes. In addition to any payments due to Twingate under this Agreement, Partner will pay amounts equal to any taxes, levies, tariffs, or duties of any nature, including value-added, sales, use, export, import, customs, excise, or withholding taxes, or similar government fees or taxes assessable in any jurisdiction that are levied or based upon such payments or that arise under this Agreement (collectively, “Taxes”), except for those assessable against Twingate based on Twingate’s net income. Partner agrees to provide Twingate with a resale certificate, if applicable and required. If Partner is required by applicable law to make deductions or withholdings from payments to Twingate, then Partner will pay such amounts to the relevant taxation authority and will pay such additional amounts to Twingate as may be necessary to ensure that the actual amount received by Twingate after the deduction or withholding (and after payment of any additional taxes due as a consequence of such additional amount) will equal the amount that would have been received if such deduction or withholding were not required.

7.10. Subscription Term Alignment. In order to align the renewal dates of some or all of a Partner’s subscriptions purchased under this Agreement (including an MSP’s Subtenants and a Reseller’s subscriptions), Twingate may, at its discretion, shorten a subscription’s subscription term and bill a prorated amount for the shortened subscription term.

7.11. Resale Pricing. Resellers are free to determine their resale pricing of Covered Products to Reseller Customers.

7.12. Independent Payment Obligation. For the avoidance of doubt, Partner’s payment obligations to Twingate are not contingent in any way upon Partner receiving payment from End Customers, or other third parties, and any delays or failures in obtaining payments from End Customers or other third parties will not affect Partner’s obligations to make timely payments to Twingate under this Agreement. No termination of a Resale Agreement, MSP Customer Agreement, or End Customer Agreement will relieve Reseller of any of its payment obligations incurred under this Agreement in connection with the Products relating to such agreements prior to such termination. Collection of amounts owed from End Customers is Partner’s sole responsibility.

7.13. Required Resale Refunds. If Twingate is legally obligated to refund fees under the terms of an End Customer Agreement, Twingate will refund the applicable amount to Partner and Partner will promptly refund to the End Customer the corresponding applicable proportionate amount based on the fees that End Customer paid to Partner. In such an event, the End Customer’s right to use the refunded Covered Products will terminate.

8. PRIVACY & SECURITY

8.1. DPA. To the extent that Twingate is processing Personal Information of or from (a) Partner, or (b) an End Customer where Twingate is a processor to Partner, in each case in connection with providing the Products, the parties agree to comply with the DPA.

8.2. End Customer Privacy. Partner agrees that it will protect the privacy and legal rights of its End Customers and process End Customer Personal Information in accordance with applicable laws. Partner will fully disclose in Partner’s agreements with End Customers, or prominently display, a privacy policy that describes to End Customers the information that is collected by Partner and how such information is used and shared.

8.3. Privacy Policy. Partner acknowledges that it has reviewed Twingate’s Privacy Policy at https://www.twingate.com/privacy. Partner will not, directly or indirectly, through action or inaction, cause Twingate to be in violation of its Privacy Policy.

8.4. Security Measures. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Partner shall in relation to the data of its End Customers implement appropriate technical and organizational measures designed to ensure a level of security appropriate to that risk, including, as appropriate, the measures required under applicable law. Partner shall notify Twingate immediately upon discovery of any unauthorized access or use of its user accounts or access credentials for a Product (including the MSP Portal).

8.5. Representations. When Partner is a user of a Product on behalf of an End Customer, Partner represents and warrants that:

(a) Partner or End Customer, owns or has a right of use from a third party, and controls, directly or indirectly, all of the software, hardware and computer systems (collectively, “Systems”) where the Products will be installed or deployed;

(b) to the extent required under any federal, state, or local U.S. or non-US laws (e.g., Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., Title III, 18 U.S.C. 2510 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq.) it has authorized Twingate to access the Systems and process and transmit data through the Products to the extent necessary to provide the Product;

(c) it has a lawful basis in having Twingate provide the Products, and process any End Customer Personal Information or Personal Information provided by Partner;

(d) it is and will at all relevant times remain duly and effectively authorized to instruct Twingate to carry out the applicable agreement and provide the Products; and

(e) it has made all necessary disclosures and obtained all necessary consents and government authorizations required under applicable law to permit the processing and international transfer of the data of its End Customers, including End Customer Personal Information, to Twingate, including onward transfers to Twingate’s subprocessors.

9. CONDUCT AND COMPLIANCE

9.1. Partner Conduct. Partner will: (a) not make any representations or warranties on behalf of Twingate, or any representations, warranties or other statements regarding Twingate or any Product other than those which are consistent in all respects with the Product documentation supplied by Twingate; (b) avoid deceptive, misleading and unethical practices; and (c) conduct business with a high standard of professionalism and in a manner that reflects favorably at all times on Twingate and the Products.

9.2. Compliance with Applicable Law. Partner will at all times conduct its efforts hereunder with the highest commercial standards and perform any activities in connection with this Agreement in strict accordance with all applicable laws, rules, directives and regulations (“Applicable Laws”). Partner will be responsible for current and ongoing familiarity and compliance with all Applicable Laws relating to the importation, distribution, marketing, sale, operation, use and support of the Products. Partner will use the Products in accordance with laws, rules and regulations directly applicable to Partner and acknowledges that Partner is solely responsible for determining whether a particular use of a Product is compliant with such laws.

9.3. Unfair Competition. Partner shall comply with all applicable global antitrust or competition laws. Partner represents, warrants and covenants that it has not and will not engage in any action to unlawfully fix or set prices for the Covered Products, or engage in conduct prohibited by an applicable global antitrust or competition laws.

9.4. Anti-Corruption. Partner will comply with all applicable global anti-corruption and anti-bribery laws, including the United States Foreign Corrupt Practices Act (collectively, “Anti-Corruption Laws”). Partner represents, warrants, and covenants that:

(a) it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any End Customer or Twingate employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business, if not prohibited by applicable law, do not violate the foregoing restriction. If Partner learns of any violation of the foregoing restriction, Partner will promptly notify Twingate;

(b) it has not and will not directly or indirectly make, offer, promise, give, or authorize a payment, gift, or anything of value for the purpose of influencing an act or decision of an employee or official of any government or government-controlled entity (including a decision not to act) or inducing such a person to use such person’s influence to affect any such governmental act or decision in order to assist Partner or Twingate in obtaining, retaining, or directing business; and

(c) none of Partner’s directors, officers or employees who have decision-making authority with respect to this Agreement are government officials or have been convicted of any offense involving bribery, corruption, fraud or dishonesty, or to the best of Partner’s knowledge, have been or are the subject of any investigation, inquiry or enforcement proceeding by any governmental, administrative or regulatory body regarding any offense or alleged offense under any Anti-Corruption Laws.

9.5. Trade Compliance. For the purposes of this Section 9.5, “Products” include any related technical documentation.

(a) Restrictions. Partner will not export, re-export, release, transfer, provide, sell, or facilitate the sale of, any Product:

(i) into any territory subject to an embargo imposed, maintained, or enforced by the United States, the United Kingdom, or European Union, which currently includes Cuba, Iran, North Korea, Syria, and the Crimea, Luhansk and Donetsk regions of Ukraine (collectively, “Embargoed Regions”);

(ii) to any individual or entity that is a national or resident of, or organized under the laws of, an Embargoed Region, or that is on the U.S. Department of Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders List, the U.S. Department of Commerce’s Denied Persons and Entity Lists, or any other sanctions or restricted persons lists maintained by the European Union, the United Kingdom, and the United States (collectively, the “Restricted Lists”); or

(iii) in violation of any applicable laws and regulations of any country that govern the importation, use, or re-export of the Products.

Partner will not access or use, nor permit any End Customer to access or use, a Product in an Embargoed Region. Partner will not permit any individual or entity on a Restricted List to access or use a Product.

(b) Representations. Each party represents that it is not named on any Restricted List. Each party represents that it is not resident in, or organized under the laws of, an Embargoed Region.

(c) Export Compliance. Partner will comply with all United States export laws and regulations governing the export or re-export of all Products and any services provided in connection with the Products, including without limitation the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and any regulations administered by the Department of the Treasury’s Office of Foreign Assets Control. Partner will comply with all applicable laws and regulations of any country that govern the importation, use, or re-export of the Products. Partner agrees to comply with any reasonable conditions that Twingate notifies Partner are contained in any applicable export licenses pertaining to the Products. Partner shall comply with any reporting requirements that may apply to the export or re-export of the Products and shall provide to Twingate and the appropriate governmental authority any periodic reports containing such information as may be required under applicable law. Partner further agrees to pay any taxes or tariffs that may apply to the export, or re-export of the Products.

(d) Prohibited End Customers. If Twingate discovers non-compliance with this Section 9 with respect to an End Customer associated with a Product purchased by Partner under this Agreement, Twingate may terminate, upon written notice, the relevant subscription, End Customer Agreement and/or Managed Subtenant. Twingate will not be liable to provide any refunds to Partner in connection with any termination of a subscription or End Customer Agreement pursuant to this paragraph.

9.6. Restrictions. Except with Twingate’s prior written consent, Partner will not, and will not authorize, cause, encourage or assist any third party to:

(a) use any Product in connection with the development, marketing, distribution or exploitation of any products or services that are competitive with any Product;

(b) grant to any third party any license, sublicense or other rights in or to any Product, other than as may be permitted under this Agreement;

(c) create derivative works of, translate, adapt or otherwise modify any Product;

(d) decompile, disassemble or reverse engineer any Product, or otherwise attempt to derive or extract any source code from any Product, except to the extent such restriction is prohibited by law;

(e) perform, or publish the results of, any benchmark tests or other review or analysis of a Product for the purpose of competing with Twingate;

(f) publish a review or the results of any internal evaluation or test of a Product, or a comparison of a Product versus competitor products;

(g) use any method unauthorized by Twingate (whether manual or automated) to extract or scrape data from a Product, or otherwise access a Product;

(h) circumvent any of a Product’s security measures or attempt to gain unauthorized access to a Product or its related systems and networks;

(i) remove or alter any notice of proprietary right appearing on a Product, or affix or place any label or marking on a Product or its documentation that may be interpreted as a claim of ownership by Partner or any third party; or

(j) disclose the specifications of, or Twingate’s product roadmap for, any Product to any third party other than potential End Customers under an obligation of confidentiality.

9.7. Monitoring. Partner agrees that Twingate may monitor Partner’s use of the Products and any Twingate content to ensure quality, improve Twingate’s products and services, and verify Partner’s compliance with this Agreement.

10. TERM AND TERMINATION

10.1. Term. This Agreement will commence on the Start Date identified on the first Membership Form entered into by the parties (or, if no such date is identified, the date the parties enter into this Agreement) (“Effective Date”) and will continue until terminated by either party as provided under this Agreement (the “Term”).

10.2. Termination Without Cause. Either party may terminate this Agreement at any time for any reason by providing at least 3 months’ prior written notice to the other party.

10.3. Termination for Breach. Either party may terminate this Agreement immediately upon written notice to the other party if the other party commits a material breach of this Agreement and fails to remedy such breach within 30 days after receipt of written notice from the non-breaching party identifying and describing such breach.

10.4 Termination by Twingate. Twingate may terminate this Agreement upon 7 days’ written notice to Partner if Partner, in Twingate’s reasonable opinion, has engaged in conduct that does not reflect favorably on Twingate or the Products, or which may cause damage to Twingate’s reputation given Twingate’s relationship and association with Partner. Twingate may terminate this Agreement upon written notice if Twingate determines, in its sole discretion, that Partner has become a direct competitor of Twingate.

10.5. Effect of Termination. Upon any termination of this Agreement, all rights, licenses and obligations of the parties under this Agreement will immediately terminate, subject to the following:

(a) Partner will immediately cease using Twingate’s Trademarks and discontinue all representations that it is a partner of Twingate or Program participant;

(b) the rights and obligations of the parties under Sections 9 (Conduct and Compliance), 10 (Term and Termination), 11 (Confidentiality), 12 (Proprietary Rights), 13 (Disclaimers), 14 (Limitation of Liability), 15 (Indemnification), and 16 (General) will survive any termination of this Agreement;

(c) the rights and obligations of the parties under Section 5 (Pricing and Payment Terms) will survive any termination of this Agreement with respect to any unpaid fees; and

(d) for avoidance of doubt, neither party will be relieved of any payment obligations or other liability incurred under this Agreement prior to any termination of this Agreement.

10.6. No Liability. In the event of any termination of this Agreement by either party in accordance with any of the provisions of this Agreement, such party will not be liable to the other party because of such termination: (a) for compensation, reimbursement or damages for the other party’s loss of prospective profits or anticipated sales; (b) on account of any expenditures, investments, or commitments made by the other party; or (c) for any other damages, losses or expenses incurred by the other party based upon or arising out of such termination.

10.7. End Customer Agreements. Each End Customer Agreement will terminate in accordance with its terms. No termination of this Agreement will affect any End Customer Agreement except as expressly set forth in its terms or this Agreement.

10.8. Managed Subtenants. In connection with the termination of this Agreement, the parties will cooperate to develop a post-termination transition plan for any Subtenants that Partner has. Twingate may, at its discretion, permit subscriptions associated with Managed Subtenants to continue for a limited period under the terms of this Agreement until control or ownership of the Managed Subtenant can be, with Partner’s consent, assigned to a consenting End Customer or MSP authorized by the End Customer.

11. CONFIDENTIALITY

11.1. Confidential Information. During the Term, a party (“disclosing party”) may disclose to the other party (“receiving party”) information in connection with this Agreement that: (a) the disclosing party designates as confidential at the time of disclosure, such as by written legend, or (b) the receiving party would reasonably understand to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information excludes information that: (1) is or becomes publicly known through no fault of the receiving party; (2) is, when it is supplied, already known to the receiving party in circumstances in which it is not prevented from disclosing it to others; (3) is independently obtained by the receiving party in circumstances in which it is not prevented from disclosing it to others; or (4) was independently developed by the receiving party without reference to the Confidential Information. The terms of this Agreement, including those relating to pricing, discounts, and payment are deemed to be Twingate’s Confidential Information.

11.2. Confidentiality. A receiving party will not use the disclosing party’s Confidential Information except to exercise its rights and perform its obligations under this Agreement, and will not disclose such Confidential Information to any third party except to those of its employees, directors, affiliates, or contractors (“Representatives”) who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each Representative is legally bound to use and disclosure restrictions consistent with the terms set forth in this Section 11, and that the receiving party will be liable for its Representatives’ failure to do so. A receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, that a party may disclose such Confidential Information as required by applicable law, regulation, court order or action by applicable regulatory authority, subject to the party being required to make such disclosure giving reasonable notice to the other party (if permitted by law) to enable it to contest or limit such order.

11.3. Removal of Confidential Information. Promptly after any written request by a disclosing party, the receiving party shall, at the receiving party’s option, either destroy or deliver to the disclosing party all tangible materials, and delete all electronic materials, embodying the Confidential Information, and provide written confirmation that such action was completed. Notwithstanding the foregoing, the receiving party may retain such copies of the Confidential Information as are required to comply with applicable laws and regulations, and as may be kept in routine backup copies made for disaster recovery purposes, provided that all such retained Confidential Information will remain subject to the confidentiality provisions herein.

11.4. Equitable Relief. Each party acknowledges that a breach of this Section 11 by a receiving party may cause irreparable and continuing damage to the disclosing party for which money damages are insufficient, and the disclosing party will be entitled to seek injunctive relief (without needing to post a bond) and/or a decree for specific performance, and such other relief (including money damages) as may be proper.

12. PROPRIETARY RIGHTS

12.1. Ownership. As between Twingate and Partner, Twingate owns, and will retain, all right, title and interest (including all intellectual property rights) in and to the Products.

12.2. No Implied Rights. Except as expressly set forth in this Agreement, Twingate grants no licenses or other rights (whether in or to any Product, or otherwise) to Partner or any third parties. All rights not expressly granted to Partner are retained by Twingate and its licensors.

12.3. Proprietary Rights Markings. Partner will ensure that all copies of Products and their documentation will contain all copyright, trademark, patent, confidentiality and other notices in the same manner as such notices appear on or in such Products as provided to Partner. Partner will not remove, alter, cover or obfuscate any copyright, trademark, patent, confidentiality and other notices placed on or in, or displayed with, any Product or documentation.

12.4. Feedback. If Partner provides Twingate with any suggestions, ideas, enhancement requests, recommendations, bug reports, or other feedback related to a Product (collectively, “Feedback”), Partner hereby assigns to Twingate all right, title and interest in and to such Feedback together with all intellectual property rights therein.

13. DISCLAIMERS

13.1. Warranty Disclaimer. Except as expressly provided in this Agreement and to the extent permitted by applicable law, Twingate makes no representations or warranties, express, implied, statutory or otherwise, with respect to any Products, or any other products, services, or materials provided by or for Twingate, including any warranties of fitness for a particular purpose, merchantability, accuracy, or noninfringement. Without limiting the generality of the foregoing, Twingate does not represent or warrant that any Products or other products and services provided by Twingate will meet the requirements of Partner or any End Customer (even if such requirements are known to Twingate), or will be uninterrupted or error free. For clarity, Twingate makes no representations or warranties under this Agreement to any End Customers or other third parties.

13.2. High Risk Uses. Products are not designed or intended for use in any hazardous environments requiring fail-sale performance or operation and are not for use in the operation of aircraft navigation, nuclear facilities, or communications systems, weapons systems, direct or indirect life-support systems, air traffic control, or any application or installation where failure could result in death, severe physical injury, environmental damage, or property damage.

14. LIMITATION OF LIABILITY

14.1. Liability Exclusions. Subject to Section 14.3 (Exceptions), in no event will either party be liable to the other party under or in connection with this Agreement for: (a) any indirect, consequential, special, incidental, punitive or exemplary damages, under any theory of law, including tort; or (b) loss of or damage to: (i) business, (ii) savings, (iii) revenues, or (iv) profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible, and even if a remedy fails of its essential purpose. Twingate will have no liability with respect to claims relating to or arising from the use of non-Twingate products and services, even if Twingate has recommended, referred or introduced Partner to such products and services. Twingate will have no liability under this Agreement to any End Customers or other third parties.

14.2. Liability Limitations. Subject to Section 14.3 (Exceptions), in no event shall the aggregate liability of a party to the other party for all claims and damages arising out of or related to this Agreement exceed the total amount paid by Partner to Twingate under this Agreement in the 12 month period preceding the incident from which the liability arose.

14.3. Exceptions. Sections 14.1 (Liability Exclusions) and 14.2 (Liability Limitations) shall not apply to claims related to: (a) fraud or intentional misconduct; (b) death or personal injury; (c) Partner’s payment obligations under this Agreement; or (d) Partner’s breach of Section 9.6 (Restrictions); or (e) Partner’s indemnification obligations under this Agreement.

15. INDEMNIFICATION

15.1. Indemnity. Partner agrees to indemnify, defend, and hold harmless Twingate:

(a) from any third party claims arising from or related to: (i) Partner’s breach of this Agreement; (ii) any representation or warranty made by Partner regarding a Product which is not expressly authorized by Twingate in writing, (iii) any use, integration or combination of a Product with other products or services which is not in accordance with this Agreement or official Product documentation, (iv) any alleged or actual infringement or violation of a third party’s intellectual property rights by the Partner’s services (to the extent that such claims do not relate solely to a Product), and (v) the violation of any applicable law or regulation by Partner or an End Customer; and

(b) for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of such claims. Partner is solely responsible for the delivery and results of all of Partner’s services and agrees to: (i) defend Twingate against all claims and lawsuits in any form brought by End Customers or any other third party against Twingate arising out of, or in connection with, the Partner’s services or any agreement between Partner and an End Customer; and (ii) to indemnify and hold harmless Twingate against all resulting liabilities, losses, damages, costs and expenses (including attorney and expert witness fees) incurred by Twingate.

16. GENERAL

16.1. Assignment. Partner may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations under this Agreement, whether voluntarily, by operation of law or otherwise, without the prior written consent of Twingate (not to be unreasonably withheld). Any attempted assignment, delegation or other transfer prohibited by the foregoing will be void. For the purposes of this section, a change in the individuals or entities that control 50% or more of the equity securities or voting interest of Partner shall be considered an assignment of Partner’s rights. Subject to the foregoing, this Agreement will inure to the benefit of and bind each party’s successors and assigns.

16.2. Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, will be regarded as one and the same instrument.

16.3. Entire Agreement; Amendment. This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, understandings and communications between the parties, whether oral or written, with respect to such subject matter. This Agreement cannot be amended except in a writing signed by both parties. No terms contained in any purchase order (other than a Twingate-approved Reseller PO) or other document submitted by Partner will in any way modify or add to the terms of this Agreement, and any such terms are hereby rejected by Twingate and will have no effect.

16.4. Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform any of its obligations under this Agreement (excluding payment obligations) to the extent such failure is due to causes beyond such party’s reasonable control, including acts of God, earthquake, fire, flood, embargoes, pandemics, epidemics, labor disputes and strikes (except with respect to a party’s own workforce), riots, acts of terrorism, war, and acts of civil and military authorities.

16.5. Governing Law. This Agreement is governed by the laws of the State of California, without giving effect to any of its conflicts of laws rules. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

16.6. Dispute Resolution. The parties agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration (to be held in English) in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided however, that each party will have a right to seek injunctive or other equitable relief in a court of law from any court of competent jurisdiction. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that the parties would have in court may not be available in arbitration. As an alternative, Partner may bring a claim in Partner’s local “small claims” court, if permitted by that small claims court's rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. Partner may bring claims only on Partner’s own behalf. Neither party will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. Partner is giving up Partner’s right to participate as a class representative or class member on any class claim that Partner may have against Twingate, including any right to class arbitration or any consolidation of individual arbitrations. Partner also agrees not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's use of the Products if Twingate is a party to the proceeding. The prevailing party will be entitled to receive from the non-prevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award. The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues. Partner hereby consents to the arbitration in San Francisco, California. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. Partner agrees that any claim or cause of action arising out of, related to or connected with the use of a Product or this Agreement must be filed within 1 year after such claim of action arose.

16.7. Interpretation. This Agreement will be deemed to have been drafted by all parties and no provision will be construed against either party by reason of the fact that it was drafted by such party. The use of section headings in this Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. The use of the words “includes,” “including,” “such as,” “for example,” and similar terms are deemed not to limit what else might be included.

16.8. No Waiver. No waiver of any provision of this Agreement will be effective unless it is specified in a writing. No waiver of a breach of any provision of this Agreement will be construed to be a waiver of any subsequent breach of the same or any other provision. The failure of either party to enforce any provision of this Agreement in a strict or timely manner will not be construed as a waiver of such provision or any other provision.

16.9. Notices. Unless otherwise set forth in this Agreement, a legal notice will be deemed to be a valid notice for the purposes of this Agreement if it is in writing and effective: (a) when personally delivered; (b) on the reported delivery date (or, if the delivery date is not a business day, on the first business day following such date) if sent by recognized international or overnight courier; (c) when verified by written receipt, if sent by postal mail with verification of receipt service; or (d) when received, as recorded by the intended recipient’s electronic logs if sent by email, provided that no bounce or other technical error message was received in response.

For the avoidance of doubt, Orders, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically according to each party’s standard operating procedures.

Legal notices to Twingate must be sent to Twingate Inc. at 541 Jefferson Ave, Suite 100, Redwood City, CA 94063, USA, marked to the attention of the Legal Department, with a copy emailed to legalnotices@twingate.com. Email is insufficient for providing indemnification claims, breach notices, and termination notices to Twingate. Any notice required or permitted under this Agreement that is sent by Twingate electronically to the Partner’s email address on the Membership Form will be deemed to be valid for the purposes of this Agreement. Partner agrees to keep its contact details specified on the Membership Form current and accurate by notifying Twingate in writing of any changes to such details.

16.10. Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the Membership Form, and (2) this PPA. The online version of this PPA located at https://www.twingate.com/terms/partner does not apply to the parties if the parties have entered into a separate agreement that expressly excludes the applicability of such online terms.

16.11. Relationship of the Parties. The use of the term “Partner” in this Agreement is for convenience and does not indicate an intention by the parties to form a legal partnership. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association between the parties, and the parties will at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party will have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.

16.12. Severability. If any provision of this Agreement is declared or found by a court or arbitral panel of competent jurisdiction to be invalid, illegal or otherwise unenforceable: (a) such event shall not render this Agreement unenforceable or invalid as a whole and the remaining terms will remain in effect; and (b) such provision will be interpreted or modified, within the limits of applicable law, to best effect the parties’ intent in entering into this Agreement or, if necessary to maintain the validity of the remaining terms, deleted from this Agreement.

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Archived Versions

• Current

• May 1, 2023